China has undergone great transformation in the turbulent years since the establishment of the new government in 1949. New practices have been woven with old traditions into a complicated social background. This has many implications, including for the living status of migrant women working as domestic helpers in China. According to estimates, there are more than 270 million migrant workers with rural living registration (Hukou) working in urban areas, who are therefore excluded from various public services and social benefits supported by urban governments. With an increasing number of women in China entering the labour market, gender discrimination, the gender pay gap, and occupation segregation are still conspicuous in practice. With the economic boost and labour expansion, millions of domestic workers are in need throughout China, yet their basic human and labour rights are not guaranteed by law. An extreme illustrative case about the poor working situation is that of Cai Minmin, a rural migrant girl working as a domestic servant who was abused for five years by her host, which perhaps reveals the tip of an Iceberg.
Rural migrant women working as domestic helpers in urban environments across China often suffer from overlapping forms of disadvantage. This intersectional disadvantage is caused by their gender, their rural Hukou status, and occupation. Firstly, the Hukou system classifies all Chinese citizens as either urban or rural born. Those migrant workers holding rural Hukou are excluded from many social benefits and public services subsidised by local urban governments. Culturally, it can also be very difficult for them to fit into urban society given their limited educational background and low socio-economic status.
Secondly, there exists within the labour market a general preference for male rather than female workers. This has the consequence of horizontal and vertical gender segregation, and a gender pay gap in various industries and occupations. Stereotypically ascribed to family roles, women are often involuntarily relegated to relatively low paid service sectors such as caring, serving, and educating. Due to society’s expectations, women are often discouraged from pursuing their own careers and are driven into becoming housewives and mothers. In addition to discrimination against women in the recruiting process, women can also be easily marginalised by the employment market after an absence due to childbirth and breastfeeding.
Thirdly, domestic servants are more likely to work in inferior working conditions. These include prolonged working hours, insufficient rest periods, exclusion from trade unions due to their non-employee status, working without a contract, and exclusion from social welfare plans. What makes the situation worse is that, except for the handful of domestic helpers who are employed by companies, the self-employed or agency-based domestic helpers are often excluded from the Chinese labour law system as they are not legally regarded as “employees”. This means that not only do they not enjoy all of the rights prescribed by Chinese labour laws, but their working conditions are not supervised by labour inspection, and they cannot solve disputes with their employers by labour arbitration.
When host families control the working conditions of domestic helpers without labour inspection, human rights violations can occur without being detected by the outside world. If domestic helpers have a dispute with their host families, they cannot go to labour arbitration, which has been set up for normal employment relationships. More often than not, these domestic workers do not possess sufficient legal knowledge to defend their rights and often cannot afford a lawyer. Nor do they want to be dragged into a lengthy legal procedure when they can simply leave the situation and find a new host family to work for. After all, domestic helpers do not want to offend their host family. This is because they might have to rely on them to introduce potential new employers, or they simply want to keep a good reputation to attract other employers in the neighbourhood. If they were hired via agencies or acquaintances, they would be even more careful not to cause trouble for their agencies and acquaintances. Additionally, taking someone to court is considered very provocative, and something that Chinese traditional culture and teaching aims to avoid. Word can travel fast within a community, and litigation is often stigmatised as shameful by the neighbours.
All in all, there are various reasons why domestic workers, especially rural migrant workers, would not want to go to court to solve their problems. However, this does not mean that they do not want or deserve justice. It is rather because they lack choices. There needs to be a channel or institution that is affordable, efficient, and non-confrontational for them to fall back on.
Alternative Dispute Resolution
To address this problem, my doctoral research has suggested a series of legal amendments to Chinese laws on non-discrimination and labour standards. My study also put forward several options for Alternative Dispute Resolution mechanisms to ensure efficient access to justice for migrant women working as domestic helpers given their specific social situation. The study also compared the available social mechanisms such as labour arbitration, petition and mediation in this regard. These are discussed below in more detail.
In China, labour arbitration is an effective way to solve labour disputes at all levels of employment, with sufficient authority and enforcement powers. However, the current Labour Arbitration Law only solves disputes between the legally recognised “employers” and “employees”. This means that such labour arbitration procedures do not apply for most domestic helpers, who are considered to be self-employed or employed via agencies, and not included as “employees” in the Chinese labour law system. Furthermore, labour arbitration does not apply to disputes occurring before a labour contract has been signed, for example a discriminatory act against a migrant worker in the recruitment process. Hence, either the law itself needs to change to include all domestic helpers as “employees” or, before that happens, alternative methods have to be found to settle disputes between domestic helpers and their host families.
In Western states, the National Human Rights Institute and Ombudsperson, both seem to be good options for domestic helpers to seek justice. However, neither of these systems has been established in China. Given that further research is needed on the effect of these types of bodies in the Chinese context, this study does not currently recommend these mechanisms.
The petition system in China certainly enjoys widespread acceptance at the grass roots as a longstanding cultural, political, economic, and institutional tradition in Chinese society. Petition is a channel to reach justice for marginalised people in the lower classes, in comparison to the court system which is usually used by well-off families who can afford it. Yet the petition system is often perceived by many scholars as an arbitrary procedure that lacks sufficient formality, professionality, rationality, and certainty to fit within the rule of law. Furthermore, in the specific case of migrant women working as domestic helpers, the opposing parties are usually host families rather than administrative organs. Given that the petition system is more suitable for solving administrative disputes, it is perhaps not an appropriate option for migrant women domestic helpers in urban China.
Another potential avenue for justice for migrant women domestic helpers is mediation. In China, mediation can be carried out by private parties or under the supervision of the Local Residents’ Committee. According to law, the Local Residents’ Committee at each administrative level in both rural and urban areas will establish a People’s Mediation Commission. This Commission is composed of between three and nine elected members (including female members). If successful, the People’s mediation procedure often ends with a binding mediation agreement. Such an agreement is normally in written form with detailed information of the parties, the facts and issues of the dispute, the rights and responsibilities after mediation, performance details, and signatures of the parties and mediators. Legally binding as a civil contract, such a mediation agreement can further be “judicially confirmed” (sifa queren) by local courts afterwards in cases of non-compliance. Additionally, a Local Residents’ Committee is physically accessible as situated in the neighbourhood, so it can quickly intervene when there is friction, and it can report the situation to an appropriate authority if the situation escalates.
After comparing the various social mechanisms that guarantee enforcement and remedy such as formal courts, labour arbitration, petition, and mediation, it is suggested that the fullest use be made of People’s Mediation under the Local Residents’ Committee to ensure affordable and expedient access to justice for migrant women working as domestic helpers given the specific social fields they are in. In particular, for the relationship between host families and domestic helpers, settling disputes quietly and amicably is beneficial to both sides in a community full of acquaintances. This suggestion by no means excludes the use of courts as a last resort for seeking justice.
This blog is an excerpt of the PhD research findings of Human Rights issues concerning migrant women workers as domestic helpers in China.